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1972 Supreme(Ker) 2
Judges : K.SADASIVAN
Kakkoppurath Valappil Sivaprasad And Others - Appellant
Versus
State Of Kerala - Respondent
Case No : Criminal Revn. Petn. No. 361 of 1971
Decided On : 01/04/1972
Advocates Appeared :
For the Petitioner: V. N. Achutha Kurup, Advocate. For the Respondent: State Prosecutor.
Compliance with Section 207-A of the Code of Criminal Procedure and the right of the accused to be heard are essential for a valid committal order.
Headnote:
Compliance with Section 207-A of the Code of Criminal Procedure - Committal Order
Fact of the Case:
The committal order passed by the learned Sub Magistrate of Cannanore in P.R. Case No. 8/71 is challenged on the ground of non-compliance with Section 207-A of the Code of Criminal Procedure. The prosecution produced four witnesses, but none were examined. The first informant, who was an eyewitness, was not considered as such by the Magistrate. The accused was not given an opportunity to explain circumstances against him, and the Magistrate did not comply with the mandatory directions of Section 207-A.
Finding of the Court:
The court found that the Magistrate did not comply with the mandatory directions of Section 207-A and failed to give the accused an opportunity to be heard. The court set aside the committal order and sent the case back to the Magistrate for a fresh inquiry according to law.
Issues: Non-compliance with Section 207-A of the Code of Criminal Procedure, failure to give the accused an opportunity to be heard, and lack of examination of witnesses.
Ratio Decidendi: The Magistrate must comply with the mandatory directions of Section 207-A, give the accused an opportunity to be heard, and examine all witnesses produced by the prosecution. Failure to do so may result in the setting aside of the committal order.
Final Decision: The court allowed the revision, set aside the committal order, and sent the case back to the Magistrate for a fresh inquiry according to law.
The committal order passed by the learned Sub Magistrate of Cannanore in P.R. Case No. 8/71 is challenged before me on the ground that in passing the order the learned Magistrate has not complied with the mandatory directions contained in Section 207-A of the Code of Criminal Procedure. Section 207-A(4) provides that the Magistrate, after the accused has appeared before him and has satisfied himself that the documents referred to in Section 173 have been furnished to the accused shall proceed to take evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also. Four he may were produced by the prosecution on 24-5-1971; but none of them was examined. From the diary extract of the court it is seen that a legal point was raised and the point was that "since there are no eye-witnesses to the occurrence, whether the court should examine the other witnesses." Magistrate is given the discretion to examine the other witnesses produced and this discretion has to be judicially exercised. That apart, one of the 4 witnesses produced was the first informant who was an eye-witnesses to the occurrence as is seen from the F.I. statement itself. The following extract from the F.I. statement will bear this out. He has stated :
"Krishnan Nambiar (Krishnan Nambiar is the deceased in this case) seized the key from any hand and went towards the gate. I also went behind. Then they were entering by dismantling the gate. They caught hold of Krishnan Nambiar and started hitting him with spears. Krishnan Nambiar raised cries. I got frightened and went home."
According to the learned Magistrate, this witness cannot be treated as an eye-witness, since he has not spoken to the actual commission of the murder. When a witness swears to the acts which led to the murder. I fail to understand how could he be said to be not an eye-witnesses to the occurrence. It is surprisingly that on behalf of the prosecution it was submitted before the learned Magistrate that there are eye-witness to the occurrence The learned Magistrate observes in para 3 of his order.
"At this juncture the prosecution submitted that in this case there are no actual eye-witnesses and the evidence sought to be adduced by the prosecution is mainly one of circumstantial evidence and therefore the prosecution prays that this case may be committed on perusal of the documents under Section 173(4) Cr.P.C. as there are not occurrence witnesses to be examined in this case."
Section 207-A does not limit the power of the Magistrate to examine eye-witnesses alone. If the Magistrate is of opinion that in the interests of justice it is necessary to take the evidence of other witness also he is at liberty to do so. On behalf of the prosecution it is submitted that the committal order has been passed by the learned Magistrate after perusing the documents under Section 173(4) of the Code. But I do no see anything in the order which would ensure that he records in the case at least were carefully considered by the Magistrate in passing the committal order. The Supreme Court has observed in Ramnarayan v. State of Maharashtra (AIR 1964 SC 949) = (1964 (2) Cri.L.J. 44) that :-
"The object underlying the procedure prescribed by sub-sections (4), (6) and (7) is to determine, after the accused has been apprised of the nature and the details of the prosecution case together with the evidence oral and documentary on which the case against the accused is sought to be proved, whether there is a prima facie case against the accused which should go before the court of Session for trial. In the performance of his functions the Legislature has made it obligatory upon the Magistrate to record evidence tendered, or appearing to him necessary, to consider
